FRANKFORT — The controversial program to give state inmates parole credits allowing them to be released early reduced the inmate population in Kentucky from around 22,500 to roughly 21,000 by early August.

More than half of them have been replaced by new inmates.

“They’ve got a flow of inmates they cannot slow down,” said Robert Lawson, the University of Kentucky law professor who more than anyone else has studied the problem of exploding inmate populations.

Lawson thinks the problem is unmanageable without changes to the persistent felony offender — or “three strikes” — law. Lawson wrote that law but he’s seen it changed and enhanced over the years to include a lot of crimes which were once considered minor offenses.

Lawson said the law was intended to punish individuals, who in Lawson’s words “had plenty of time to change” but didn’t. Now, the law is used as “a hammer” by prosecutors to wrest guilty pleas from defendants, according to Lawson.

Some prosecutors dispute Lawson’s contention, but Kentucky Attorney General Jack Conway conceded Tuesday that it’s used that way.

“I think there is some practical recognition on the part of prosecutors that charging someone as a PFO offender helps the prosecution, because our criminal justice system will not function unless more than 90 percent of our cases plead,” Conway said.



“And PFO statutes are a tremendous tool, hammer to get defendants into a position where they will consider plea bargains.”

He said the commonwealth's attorneys with whom he’s discussed changing the PFO law are “very reluctant to change our PFO laws because they see it as a tool to help with prosecutions. And I think for the most part it’s been expressed to me they want to keep that at their disposal.”

Conway said he’s open to discussing changes to the PFO laws, but he thinks any changes need more discussion and investigation.

The question is crucial to state government’s desire to control prison populations and costs. Kentucky has the fastest incarceration growth rate in the nation and its corrections budget now stands at $400 million. The measure to give inmates credit for previous parole time was inserted into this year’s budget; Gov. Steve Beshear asked the Criminal Justice Council to find ways to contain costs; and the legislature convened a subcommittee of its Interim Judiciary Committee to explore ways to reduce inmate populations and costs.

Of the 21,840 state inmates, 7,643 of them are housed in county jails, according to the Department of Corrections. And the counties’ jail budgets are exploding – mostly from misdemeanor inmate costs. But they receive state funding for housing the state inmates. So, they are against another recommendation – to make some current felonies misdemeanors.

At a meeting of a committee Tuesday looking at sentencing laws, Kenton County Deputy Judge-Executive Scott Kimmich said that hurts counties.

“Reducing felony charges back to misdemeanors shifts the costs back to the counties,” Kimmich told the committee. (Among the proposals is one to increase amounts for felony thefts to factor in for inflation – a $300 theft today represents much less property or value than when that amount was established as the felony theft threshold.)

“I don’t blame him,” Lawson said when told of Kimmich’s comments to the sentencing committee. “I’ve said before that you’ve got to take that into account because you’re pushing heavier costs onto the counties and counties can’t handle it.”

Many counties are spending 30 or 40 percent of their general fund budgets to cover their county jail budgets.

Palmore and Lawson fear that absent action by the state to reduce the number of its inmates – especially those in county jails – the question will ultimately be decided by the courts. Section 253 of the state constitution, “seems to say you’ve got to put convicted felons in the state penitentiary,” Lawson said.

Even if that doesn’t happen, the pressures on a lean state budget during a major economic slowdown will force changes in the corrections system – or the redirecting of spending to corrections from other already strapped programs. But then that’s where this started.

Ronnie Ellis writes for CNHI News Service and is based in Frankfort. He can be reached by e-mail at rellis@cnhi.com.

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